State Secrets Claim Should Not Bury Important Surveillance Lawsuit

EFF Argues Against Dismissal of Al-Haramain v. Bush

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to allow an important government surveillance lawsuit to have its day in court, despite the government's attempt to bury the case using the state secrets privilege.

The case is Al-Haramain Islamic Foundation v. Bush, which alleges that federal agents illegally wiretapped calls between the charity and its lawyers. The government has asked U.S. District Court Judge Vaughn Walker to dismiss the case, contending that the litigation jeopardizes state secrets. But in an amicus brief filed Monday, EFF argues that the Foreign Intelligence Surveillance Act (FISA) was written to allow cases like this one to proceed with appropriate security precautions.

"Federal surveillance law already provides clear procedures that allow cases like Al-Haramain v. Bush to proceed fairly and securely, and those procedures trump the Administration's claims of blanket secrecy," said EFF Senior Staff Attorney Kurt Opsahl. "By trying to use the state secrets privilege as a shield against any litigation over the legality of its warrantless wiretapping, the administration is essentially telling the other branches 'just trust us.' But when Congress passed FISA, it entrusted judges with the responsibility of deciding the legality of the executive branch's surveillance operations."

This is the government's second attempt to dismiss the Al-Haramain case. The first motion to dismiss reached the 9th U.S. Circuit Court of Appeals, which returned the case to Judge Walker's court to consider the FISA issue.

Judge Walker is also the presiding judge in Hepting v. AT&T -- EFF's class-action lawsuit accusing the telecommunications company of violating customers' rights by illegally assisting the National Security Agency in widespread domestic surveillance.

For the full amicus brief:
http://www.eff.org/files/filenode/att/alharamainamicus1806.pdf